Trump wants you to pay for transparency

President Trump likes to flood the zone. Like when the cheeseburger is hurled against the wall in the hope that something will stick. Just as the ill-conceived and illegal IRS “lawsuit settlement” finally dropped off the front page, the president announced a new scheme to fill his pockets by selling his words and actions for a fee.

This one establishes a unique “pay to know early” for the uber wealthy entitling stock traders and others to receive the president’s Truth Social posts before the rest of the world gets the information. And these “lucky” few will only have to pay $100,000 a month to be ahead of the rest of us. Since the president only gets 40% of these Truth Social receipts, he will pocket $4,800,000 a year if only 10 suckers sign up (and they already have) – and more if Trump applies his recently reported standard operating procedure by having his fundraising enforcer sternly tell everyone that “the boss really needs this money.”

Some will only sign up because enriching Donald Trump is what they do or because they will feel warm and fuzzy knowing what the rest of us only learn later. But with the many consequential announcements that the president makes on Truth Social, you can imagine how the stock traders might use this early information to sweeten their stock portfolios. Ivan Boesky, Rajat Gupta and Raj Rajataratnam are but a few of the major league inside traders who have done serious time. The maximum penalty for insider trading well exceeds Trump’s life expectancy.

The marketing of the president’s burst of transparency for those willing to pay for it will tell a great deal about the potential value of the information for which each of these customers will pay over $1 million a year. It is likely that these investors expect to profit from their investment.

A creative prosecutor might also consider charging the miscreants with conspiracy under 18 USC 371 to commit prohibited conversion of governmental intangible property under 18 USC 641.

You may ask whether President Trump is immune from prosecution for pocketing a profit from the sale of early information posted on Truth Social. If the Truth Social posting involves the exercise of some official power which he alone possesses or which he shares with others in the government, then posting of that action by him on Truth Social to the general public would not be a chargeable offense, as considered by the Supreme Court’s recent opinion.

Similarly, early transmission of his action or decision to others in the government for the purpose of making sure that relevant government officials are aware of the action being taken would also be protected by presidential immunity. However, selling the early transmission to those private parties who choose to pay for it so that they can make whatever use they wish of it is not in any way, shape or form the performance of an official governmental act within the protection of presidential immunity.

Let’s say that one of the buyers of early presidential information is considering investing in an oil company that is contemplating major drilling activity in a theretofore protected parcel of federal land, and the president is announcing on Truth Social that the land will no longer be protected. The head start on that information would hardly be the performance of an official act protected by presidential immunity.

To be sure, the president’s iron control over the federal prosecutorial function would protect him and the buyers of the Truth Social information from criminal prosecution until January 2029. But it would not protect them from congressional action or efforts at the state level to prevent the scheme

Congress is already seeking to gather information about the scheme and we urge either the current Congress or the Congress we have in 2027 to step in and see to it that Truth Social does not become yet another part of the graft that lingers over our nation’s capital. And two groups have recently filed suit in the Southern District of New York seeking an injunction against this latest graft based on claimed violations of the First and Fifth Amendments to the United States Constitution.

Editorial Advisory Board Members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

Gary E. Bair

Jill P. Carter

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.